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ACROSS SESSIONS
- Subject Index: Since 1995
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Developed and maintained by the Division of Legislative Automated Systems.
1995 SESSION
LD1244722Be it enacted by the General Assembly of Virginia:
1. That §§ 46.2-351.1, 46.2-352 through 46.2-358, 46.2-360 and 46.2-361 of the Code of Virginia are amended and reenacted as follows:
§ 46.2-351.1. Intervention required for certain offenders; fee; penalty; notice.
A. Upon receiving notification of any alcohol-related or drug-related
conviction entered on or after January 1, 1994, which will result in the
offender's being subject to adjudication determination as an
habitual offender if convicted of one additional offense, the Commissioner
shall notify the person that he shall report to an alcohol safety action
program within sixty days of the date of such notice for intervention.
Intervention shall be in accordance with § 18.2-271.1. The program shall
provide the Commissioner with information of compliance.
B. Upon receiving notification of any conviction which is not alcohol or
drug related entered on or after January 1, 1994, which will result in the
offender's being subject to adjudication determination as an
habitual offender if convicted of one additional offense, the Commissioner
shall notify the person that he shall attend a driver intervention interview
within sixty days of the date of the notice. The interview shall be conducted
by a representative of the Department, to be designated by the Commissioner.
The representative shall review with the person attending the interview the
habitual offender laws and explain the consequences of future offenses and
may refer the person to any driver improvement program approved by the
Commissioner. A fee of thirty dollars shall be paid for attendance at a
driver intervention interview.
C. The Commissioner shall suspend the driving privilege of any person who fails to report for intervention within the sixty-day period. The suspension shall continue until such time as the person reports.
D. Notice to report for intervention shall be sent by the Department by certified mail, return receipt requested, to the driver at the last known address supplied by the driver and on file with the Department.
E. Failure of the offender to attend as required or failure of the
Department to notify the offender upon the second qualifying offense shall
not be used to prohibit adjudication determination as an
habitual offender upon receipt of the third qualifying offense.
§ 46.2-352. Commissioner to determine when person qualifies as habitual offender; when court may refuse to satisfy the Commissioner's determination under § 46.2-355; transcript or abstract as evidence.
A. The Commissioner shall certify determine, from the
Department's records, substantially in the manner provided for in §
46.2-215, three transcripts or abstracts of those conviction documents which
bring the that a person named therein within qualifies
under the definition of an habitual offender, as defined in §
46.2-351, to the attorney for the Commonwealth of the political
subdivision in which the person resides according to the records of the
Department or the attorney for the Commonwealth of the City of Richmond if
the person is not a resident of the Commonwealth. The Commissioner
shall revoke the person's driver's license for the period of time [
defined specified ] in § 46.2-356. The Commissioner
shall immediately notify the person of the revocation by certified mail,
return receipt requested, and in the same letter shall notify the person of
his right to a hearing on the revocation as provided in subsection B.
After certification determination of any person as an
habitual offender, the Department shall not thereafter issue a new or
duplicate driver's license to any such person until (i) a show cause
proceeding has been held under § 46.2-354 and a notice of
dismissal reversal of the revocation has been received by the
Department from the clerk of court as provided in § 46.2-355 or (ii)
an order of license restoration has been received by the Department as
otherwise provided in this article. Any license issued in contravention of
this provision shall be invalid.
In any proceeding under § 46.2-354, the B. If the person denies
that he is an habitual offender, he may file, [ with the
criminal within thirty days of receipt of the notice, with the
circuit ] court of the city, county, or town in which the person
resides, or with the Circuit Court of the City of Richmond if the person is
not a resident of the Commonwealth, a petition for a hearing and
determination by the court that the person is not an habitual offender.
Jurisdiction also is in the court of record to which venue may be changed.
The clerk of the court in which the petition is filed shall forward a copy of
the petition to the Commissioner. The court may refuse to enter any
order as provided in § 46.2-355 if such certification the
determination by the Commissioner was made more than five years after the
date of the most recent of the convictions which bring the person within the
definition of habitual offender and the person would be otherwise eligible
for restoration of his privilege under § 46.2-360. The transcript or abstract
may be admitted as evidence as provided in § 46.2-215. The transcript or
abstract as provided for in § 46.2-353 shall be prima facie evidence
that the person named therein was duly convicted, or held not innocent in the
case of a juvenile, by the court wherein the conviction or holding was made,
of each offense shown by the transcript or abstract. If the person denies
any of the facts as stated therein, he shall have the burden of proving that
the fact is untrue.
§ 46.2-353. Commissioner to certify copy of conviction record; attorney for the Commonwealth or Attorney General to represent Commissioner.
Upon receipt of the copy of the petition received by the clerk of the
court pursuant to § 46.2-352, the Commissioner shall certify the transcript
or abstract of any person whose record brings him within the definition of an
habitual offender, substantially in the manner provided for in § 46.2-215 to
the court and to the attorney for the Commonwealth of the city, county, or
town in which the person resides or to the Attorney General if the person is
not a resident of the Commonwealth. The attorney for the Commonwealth,
on receiving the transcripts or abstracts from the Commissioner provided
for in § 46.2-352, shall forthwith file information represent
the Commissioner against the person named therein in the court of record
having jurisdiction of criminal offenses in the county, city, or town in
which Department of Motor Vehicle records indicate to be the person's latest
address. Jurisdiction also is in the court of record to which venue may be
changed. In the event the person is a nonresident of the Commonwealth, the
attorney for the Commonwealth of the City of Richmond shall file information
against the accused person in the Circuit Court of the City of Richmond.
The clerk of the Circuit Court of the City of Richmond shall be allowed a fee
of five dollars for each information petition filed
against by a nonresident accused designated as an
habitual offender. The fee shall be paid out of the state treasury from
the appropriation for criminal charges on the certificate of the court as
provided in § 19.2-334 and shall be taxed against the defendant
person challenging the determination of the Commissioner as a part
of the costs of the proceeding, if the defendant person is
found to be an habitual offender. In the event the accused is an inmate of a
state or local correctional facility, jurisdiction for the proceedings shall
be in the locality wherein the accused is confined.
Venue of any case may be changed upon motion of either party.
§ 46.2-354. Hearing by court; scope of hearing; procedure where conviction denied.
The court in which an information is filed as provided for in § 46.2-353,
shall enter an order, which incorporates the transcript or abstract provided
for in § 46.2-352 and is directed to the person named therein, to show cause
why he should not be barred from driving a motor vehicle on the highways in
the Commonwealth. A copy of the show cause order and the transcript or
abstract shall be served on the person named therein in the manner prescribed
by § 8.01-296 (1). The person may be served wherever he may be found in the
Commonwealth. Service thereof on any nonresident of the Commonwealth may be
made on the Secretary of the Commonwealth, who for this purpose shall be the
statutory agent of the person. Service shall be made by leaving a copy of
the order and the transcript or abstract in the hands of the Secretary or in
his office in the City of Richmond, and this service shall be sufficient on
the nonresident, provided that notice of the service and a copy of the order
and the transcript or abstract are forthwith sent by certified or registered
mail, with delivery receipt requested, by the Secretary to the person at his
last known address, and an affidavit of compliance herewith by the Secretary
or someone designated by him for that purpose and having knowledge of the
compliance, shall forthwith be filed with the papers. For this service, a
fee of seven dollars, which shall be paid into the general fund of the
Commonwealth, shall be taxed against the defendant as a part of the cost of
the proceeding, if he is found to be an habitual offender. subsection
B of § 46.2-352, shall provide a hearing for the person and shall make the
final determination of whether the person is not an habitual offender. The
scope of the hearing shall be limited to whether or not the person is the
same person named in the record and whether or not the person was convicted
of each offense shown by the transcript or abstract.
If the person denies he was convicted or held not innocent of any offense necessary for a holding that he is an habitual offender, and if the court cannot, on the evidence available to it, make a determination, the court may certify the decision of the issue to the court in which the conviction or holding of not innocent was made. The court to which the certification is made shall forthwith conduct a hearing to determine the issue and send a certified copy of its final order determining the issue to the court in which the information was filed.
§ 46.2-355. (Effective January 1, 1994) Determination of court.
If, pursuant to the show cause proceeding hearing as provided
for in § 46.2-354, the court finds that the person is not the same person
named in the transcript or abstract, or that he is not an habitual offender
under this article, the proceeding determination of the
Commissioner shall be dismissed, and the clerk of the court shall file
with the Department a notice of the dismissal. If the court finds that the
person is the same person named in the transcript or abstract and that the
person is an habitual offender, the court shall so find and by appropriate
order affirm the determination of the Commissioner and direct the
person not to operate a motor vehicle on the highways in the Commonwealth and
to surrender to the court all licenses or permits to drive a motor vehicle on
the highways in the Commonwealth for disposal in the manner provided in §
46.2-398. The clerk of the court shall file with the Department a copy of
the order which shall become a part of the permanent records of the
Department. Unless it appears from the record of the case that the person was
present at the hearing in which the court found him to be an habitual
offender, the clerk shall cause to be mailed to the person at his last known
address appearing in the records of the case a copy of the habitual offender
order. Such mailing, by first class mail, shall be deemed adequate notice
of affirmation of the habitual offender order, and no other notice
shall be required to make the order Commissioner's determination
effective if there was appropriate service of process for the show
cause proceeding as provided in § 46.2-354. [ The date upon which
the person received the habitual offender determination letter from the
Commissioner shall remain the date upon which the person's privilege to drive
was revoked. The habitual offender determination revocation
effective date shall remain fifteen days from the issue date of the
Commissioner's original letter. ]
§ 46.2-356. Period during which habitual offender not to be licensed to drive motor vehicle.
No license to drive motor vehicles in Virginia shall be issued to an habitual
offender, (i) for a period of ten years from the date of the order of the
court notification of the Commissioner to the person, finding the
person to be an habitual offender, and (ii) until the privilege of the
person to drive a motor vehicle in the Commonwealth has been restored by an
order of a court of record entered in a proceeding as provided in this
article.
§ 46.2-357. Operation of motor vehicle or self-propelled machinery or equipment by habitual offender prohibited; penalty; enforcement of section.
A. It shall be unlawful for any person to drive any motor vehicle or
self-propelled machinery or equipment on the highways of the Commonwealth
while the order of the court revocation of the person's driving
privilege by the Commissioner prohibiting such operation remains in
effect. However, an order the Commissioner's revocation
determination shall not prohibit the person from operating any farm
tractor on the highways when it is necessary to move the tractor from one
tract of land used for agricultural purposes to another tract of land used
for agricultural purposes, provided that the distance between the said tracts
of land is no more than five miles.
B. Any person found to be an habitual offender under this article, who is
thereafter convicted of driving a motor vehicle or self-propelled machinery
or equipment in the Commonwealth while the order determination
of the court Commissioner prohibiting such driving is in
effect, shall be punished as follows:
1. If such driving does not, of itself, endanger the life, limb, or property of another, such person shall be guilty of a misdemeanor punishable by confinement in jail for no more than ninety days and a fine of not more than $2,500, either or both. However, ten days of any such confinement shall not be suspended except in cases designated in subdivision 2 (ii) of this section.
2. If such driving, of itself, does endanger the life, limb, or property of another, such person shall be guilty of a felony punishable by confinement in the state correctional facility for not less than one year nor more than five years or, in the discretion of the jury or the court trying the case without a jury, by confinement in jail for twelve months and no portion of such sentence shall be suspended except that (i) if the sentence is more than one year in the state correctional facility, any portion of such sentence in excess of one year may be suspended or (ii) in cases wherein such operation is necessitated in situations of apparent extreme emergency which require such operation to save life or limb, said sentence, or any part thereof may be suspended.
3. If the offense of driving while an order of adjudication a
determination as an habitual offender is in effect is a second or
subsequent such offense, such person shall be punished as provided in
subdivision 2 of this section, irrespective of whether the offense, of
itself, endangers the life, limb, or property of another.
C. For the purpose of enforcing this section, in any case in which the
accused is charged with driving a motor vehicle or self-propelled machinery
or equipment while his license, permit, or privilege to drive is suspended or
revoked or is charged with driving without a license, the court before
hearing the charge shall determine whether the person has been held
classified as an habitual offender by the Commissioner and,
by reason of this holding determination, is barred from driving
a motor vehicle or self-propelled machinery or equipment on the highways in
the Commonwealth. If the court determines the accused has been held
determined to be an habitual offender, it shall certify the case to
the court of record of its jurisdiction for trial.
§ 46.2-358. Restoration of privilege of driving motor vehicle; when petition may be brought; terms and conditions.
In any case where the provisions of § 46.2-360 or § 46.2-361 do not apply,
five years from the date of any final order of a court entered under this
article notification of the revocation determination by the
Commissioner finding a person to be an habitual offender and directing
him not to drive a motor vehicle in the Commonwealth, the person may petition
the court in which he was found to be an habitual offender, or any court
of record in Virginia having criminal jurisdiction in the political
subdivision in which he then resides, local Alcohol Safety Action
Program for restoration of his privilege to drive a motor vehicle in the
Commonwealth. On such petition, and for good cause shown, the court
may local Alcohol Safety Action Program may recommend to the
Commissioner that he, upon a finding that such person does not constitute
a threat to the safety and welfare of himself or others with regard to the
driving of a motor vehicle, (i) restore to the person the privilege to drive
a motor vehicle in the Commonwealth on whatever conditions the court
Commissioner may prescribe or (ii) issue an order that the
person be issued a restricted license to drive a motor vehicle in the
Commonwealth for any of the purposes set forth in and in accordance with the
procedures of subsection E of § 18.2-271.1, subject to other provisions of
law relating to the issuance of driver's licenses.
§ 46.2-360. Restoration of privilege of operating motor vehicle; restoration of privilege to persons convicted under certain other provisions of Habitual Offender Act.
Any person who has been found to be an habitual offender where the
adjudication determination was based in part and dependent on a
conviction as set out in subdivision 1 b of § 46.2-351, may petition the
court in which he was found to be an habitual offender, or the circuit
court in the political subdivision in which he then resides local
Alcohol Safety Action Program for a recommendation to the Commissioner:
1. For restoration of his privilege to drive a motor vehicle in the
Commonwealth after the expiration of five years from the date of the
adjudication [ notice of the determination by the Commissioner
was received by the person. notification was made by the
Commissioner to the person. ] On such petition, and recommendation by
the local Alcohol Safety Action Program and for good cause shown, the
court Commissioner may, in its his discretion,
restore to the person the privilege to drive a motor vehicle in the
Commonwealth on whatever conditions the court Commissioner may
prescribe, subject to other provisions of law relating to the issuance of
driver's licenses, if the court Commissioner is satisfied from
the evidence presented that: (i) at the time of the previous convictions,
the petitioner was addicted to or psychologically dependent on the use of
alcohol or other drugs; (ii) at the time of the hearing on the
petition, he is no longer addicted to or psychologically dependent on the
use of alcohol or such other drug; and (iii) the defendant person
does not constitute a threat to the safety and welfare of himself or
others with regard to the driving of a motor vehicle.
2. For a restricted permit to authorize such person to drive a motor vehicle
in the Commonwealth in the course of his employment and to drive a motor
vehicle to and from his home to the place of his employment after the
expiration of three years from the date of the adjudication
habitual offender determination by the Commissioner. The court
Commissioner may order that a restricted license for such purposes be
issued in accordance with the procedures of subsection E of § 18.2-271.1, if
the court Commissioner is satisfied from the evidence presented
that (i) at the time of the previous convictions, the petitioner was addicted
to or psychologically dependent on the use of alcohol or other drugs, (ii) at
the time of the hearing on the petition, he is no longer addicted to or
psychologically dependent on the use of alcohol or such other drugs, and
(iii) the defendant person does not constitute a threat to the
safety and welfare of himself and others with regard to the driving of a
motor vehicle.
In the computation of the five- and three-year periods under subdivisions 1
and 2 of this section, such person shall be given credit for any period his
driver's license was administratively revoked under § 46.2-391 prior to
his adjudication [ the date on which notice of the
determination as an habitual offender by the
Commissioner was received by the person. notification by the
Commissioner of the habitual offender determination. ]
§ 46.2-361. Restoration of privilege after driving while license revoked or suspended for failure to pay fines or costs or furnish proof of financial responsibility.
A. Any person who has been found to be an habitual offender, where the
adjudication determination was based in part and dependent on a
conviction as set out in subdivision 1 c of § 46.2-351, may, after three
years from the date of the adjudication [ on which notice the
determination by the Commissioner was received by the person,
notification of the habitual offender determination was made by the
Commissioner, ] petition the court in which he was found to be an
habitual offender, or the circuit court in the political subdivision in which
he then resides local Alcohol Safety Action Program for a
recommendation to the Commissioner, for restoration of his privilege to
drive a motor vehicle in the Commonwealth.
B. Any person who has been found to be an habitual offender, where the
adjudication determination was based entirely upon convictions
as set out in subdivision 1 c of § 46.2-351, may, after payment in full of
all outstanding fines, costs and judgments relating to his adjudication, and
furnishing proof of financial responsibility, if applicable, petition the
court in which he was found to be an habitual offender, or the circuit
court in the political subdivision in which he then resides, for restoration
of local Alcohol Safety Action Program for a recommendation to the
Commissioner that his privilege to drive a motor vehicle in the
Commonwealth be restored.
C. This section shall apply only where the conviction resulted from a suspension or revocation ordered pursuant to (i) § 46.2-395 for failure to pay fines and costs, (ii) § 46.2-459 for failure to furnish proof of financial responsibility or (iii) § 46.2-417 for failure to satisfy a judgment, provided the judgment has been paid in full prior to the time of filing the petition.
D. On any such petition, the court Commissioner, in its
his discretion, may restore to the person his privilege to drive a
motor vehicle, on whatever conditions the court Commissioner
may prescribe, if the court Commissioner is satisfied from
the evidence presented that the petitioner does not constitute a threat to
the safety and welfare of himself or others with respect to the operation of
a motor vehicle, and that he has satisfied in full all outstanding court
costs, court fines and judgments relating to his any applicable
habitual offender adjudication and furnished proof of financial
responsibility, if applicable.